Tuesday, June 30, 2015

Nice Try, Abe!

The other day I had some time on my hands at the National Archives and, as is my wont, started browsing some of its on-line databases. That's when I finally realized that,
thanks to the Miller Center on Public Affairs, I could listen in as
erstwhile New Deal lawyers gave President Lyndon Baines Johnson a call. Here, for example, for example, is Tom Corcoran telling LBJ how much better a recent speech was than anything JFK ever delivered. But two conversations, from December 11 and 13, 1963, were not only fun but also pedagogically useful.

The last six weeks of my survey course on American Legal History treat the emergence of the New Deal political regime and its "consolidation" in the late 1940s and 1950s. The last class–entitled, in an homage to a classic article
by Richard L. McCormick,“The Discovery that Business Corrupts
Administration”–is devoted to how the high hopes for New
Deal agencies had in the 1950s run to ground in delay,
corruption and incompetence, terrain recently surveyed by Joanna L.
Grisinger in The Unwieldy American State.

After reviewing the symptoms and various diagnoses of administrative malaise in the 1950s and early 1960s, I have the class consider various remedies. Although after the rise of the Consumer Movement the judiciary would become a powerful instrument of reform, they overwhelmingly deferred to the commissions. I tell the students about Bernard Schwartz's tragicomic experience as Chief Counsel of House Legislative Oversight subcommittee, including his firing after he started investigating his congressional masters, to suggest the limits of the reform impulse within Congress circa the late 1950s. What about the executive? At first, JFK's appointments, such as Manuel Cohen, Philip Elman, Newton Minow, and Joseph Swidler, and his commissioning of James Landis to report on the regulatory commissions suggested that rule by the Best Men might be back. His successor, however, viewed regulatory commissions less as Landis's Fourth Branch of Government than as a political resource to be bent to his will.

To illustrate this last point, I recount how LBJ gave Elman "the Johnson Treatment" in a receiving line after Elman publicly criticized FTC Chairman Paul Rand Dixon for not aggressively regulating, thereby outraging Dixon's congressional sponsors. (Elman tells the story in his oral history, in which he also runs down his fellow commissioners, in a passage I ssign my students.) But I now realize I should have my students listen to this phone call. As readers of Laura Kalman's biography of Abe Fortas know, Johnson respected and needed Fortas too much to be dismissive when the Washington lawyer urged the president to create something like the ABA's Standing Committee on the Federal Judiciary to review nominees to the federal regulatory commissions. He even tried out the proposal on Congressman Oren Harris (D-Ark.), who approved. But, in his conversation with Harris, LBJ seemed intrigued not because a review committee would remove politics from the appointment process but because a ranking of "qualified" might "clean . . . up" nominees chosen for political reasons. (h/t LK.)

1 comment:

Dan, thanks for these great tape links and a thought-provoking post. But after a couple of listens, I think that you've misinterpreted what LBJ said to Rep. Harris in the 12/13/1963 call. I think that when LBJ said that he thought that an ABA commission to screen potential appointees to federal commissions/regulatory agencies could "clean 'em up," he was saying, in context, that ABA screening would produce a higher-caliber-on-the-merits roster of candidates for appointment, not that it would provide cover for weak but politically desired appointees (i.e., a coat of fresh paint on a rotten board [pun intended]). So I think that the tape, although just one tidbit and a brief, terse one, shows some LBJ idealism about federal commissions/agencies -- a remnant of his New Deal youth? -- and cuts against your thesis that as president he viewed them as only, or primarily, resources to use politically.